EXHIBIT H-1
FORM OF
UTILITY MONEY POOL AGREEMENT
This Utility Money Pool Agreement (the "Agreement"), dated as of ______,
2000, is made and entered into by and among KeySpan Corporation ("KeySpan"), a
New York corporation and a registered holding company under the Public Utility
Holding Company Act of 1935, as amended (the "Act"), KeySpan Corporate Services
LLC ("KCS"), a New York limited liability corporation and a nonutility
subsidiary of KeySpan (in its role as administrator of the money pool and as a
participant in the money pool), and each of the utility subsidiaries whose name
appears on the signature pages hereof (each a "Party" and collectively, the
"Parties").
WITNESSETH:
WHEREAS, the Parties desire to establish a Money Pool (the "Utility Money
Pool") to coordinate and provide for certain of their short-term cash and
working capital requirements; and
WHEREAS, the utility subsidiaries that will participate in the Utility
Money Pool (each a "Subsidiary" and collectively, the "Subsidiaries") will from
time to time have need to borrow funds on a short-term basis, and certain of the
Parties will from time to time have funds available to loan on a short-term
basis;
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
covenants and provisions contained herein, the Parties hereto agree as follows:
ARTICLE I
CONTRIBUTIONS AND BORROWINGS
Section 1.01 - Contributions to Utility Money Pool.
Subject to applicable regulatory restrictions, if any, each Party will
determine each day, on the basis of cash flow projections and other relevant
factors, in such Party's sole discretion, the amount of funds it has available
for contribution to the Utility Money Pool, and will contribute such funds to
the Utility Money Pool. The determination of whether a Party at any time has
surplus funds to lend to the Utility Money Pool or shall lend funds to the
Utility Money Pool will be made by such Party's chief financial officer or
treasurer, or by a designee thereof, on the basis of cash flow projections and
other relevant factors, in such Party's sole discretion.
Each Party may withdraw any of its funds at any time upon notice to KCS as
administrative agent of the Utility Money Pool.
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Section 1.02 - Rights to Borrow.
Subject to the provisions of Section 1.04(c) of this Agreement, short-term
borrowing needs of the Parties, with the exception of KeySpan, will be met by
funds in the Utility Money Pool to the extent such funds are available. Each
Party (other than KeySpan) shall have the right to make short-term borrowings
from the Utility Money Pool from time to time, subject to the availability of
funds and the limitations and conditions set forth herein and in the applicable
orders of the Securities and Exchange Commission ("SEC"). Each Party (other than
KeySpan) may request loans from the Utility Money Pool from time to time during
the period from the date hereof until this Agreement is terminated by written
agreement of the Parties; provided, however, that the aggregate amount of all
loans requested by any Party hereunder shall not exceed the applicable borrowing
limits set forth in applicable orders of the SEC and other regulatory
authorities, resolutions of such Party's Board of Directors, such Party's
governing corporate documents, and agreements binding upon such Party. No loans
through the Utility Money Pool will be made to, and no borrowings through the
Utility Money Pool will be made by, KeySpan.
Section 1.03 - Source of Funds.
(a) Funds will be available through the Utility Money Pool from the
following sources for use by the Parties from time to time: (1) surplus funds in
the treasuries of Parties other than KeySpan, (2) surplus funds in the treasury
of KeySpan, and (3) proceeds from bank borrowings by Parties or the sale of
commercial paper by KeySpan and each other Party ("External Funds"), in each
case to the extent permitted by applicable laws and regulatory orders. Funds
will be made available from such sources in such other order as KCS, as
administrator of the Utility Money Pool, may determine will result in a lower
cost of borrowing to companies borrowing from the Utility Money Pool, consistent
with the individual borrowing needs and financial standing of the Parties
providing funds to the Utility Money Pool.
(b) Borrowing Parties will borrow pro rata from each lending Party in the
proportion that the total amount loaned by such lending Party bears to the total
amount then loaned through the Utility Money Pool. On any day when more than one
fund source (e.g., surplus treasury funds of KeySpan and other Utility Money
Pool participants ("Internal Funds") and External Funds), with different rates
of interest, is used to fund loans through the Utility Money Pool, each
borrowing Party will borrow pro rata from each fund source in the same
proportion that the amount of funds provided by that fund source bears to the
total amount of short-term funds available to the Utility Money Pool.
(c) Borrowings will be made by Boston Gas, Colonial Gas, Essex Gas and
EnergyNorth Natural Gas to finance their fuel purchases through the Utility
Money Pool utilizing External Funds as permitted by their respective state
regulatory orders. Borrowings will be for a calendar month at the actual
applicable interest rate attributable
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to such External Funds and will be repaid monthly upon which time a new
borrowing amount will be determined as required.
Section 1.04 - Authorization.
(a) Each loan shall be authorized by the lending Party's chief financial
officer or treasurer, or by a designee thereof.
(b) KCS, as administrator of the Utility Money Pool, will provide each
Party with periodic activity and cash accounting reports that include, among
other things, reports of cash activity, the daily balance of loans outstanding
and the calculation of interest charged.
(c) All borrowings from the Utility Money Pool shall be authorized by the
borrowing Party's chief financial officer or treasurer, or by a designee
thereof. No Party shall be required to effect a borrowing through the Utility
Money Pool if such Party determines that it can (and is authorized to) effect
such borrowing at lower cost directly from banks, through the sale of its own
commercial paper, or otherwise.
Section 1.05 - Interest.
The daily outstanding balance of all loans to any Subsidiary shall accrue
interest as follows:
(a) If only Internal Funds comprise the daily outstanding balance of all
loans outstanding during a calendar month, the interest rate applicable to such
daily balances shall be the rates for high-grade unsecured 30-day commercial
paper of major corporations sold through dealers as quoted in The Wall Street
Journal (the "Average Composite").
(b) If only External Funds comprise the daily outstanding balance of all
loans outstanding during a calendar month, the interest rate applicable to such
daily outstanding balance shall be the lender's cost for such External Funds or,
if more than one Party had made available External Funds at any time during the
month, the applicable interest rate shall be a composite rate, equal to the
weighted average of the costs incurred by the respective Parties for such
External Funds. The interest rate applicable to External Funds borrowed by a
Subsidiary for fuel purchases shall be the actual applicable interest rate
attributable to such External Funds for a calendar month.
(c) In cases where the daily outstanding balances of all loans outstanding
at any time during the month include both Internal Funds and External Funds, the
interest rate applicable to the daily outstanding balances for the month shall
be equal to the weighted average of the (i) cost of all Internal Funds
contributed by Parties, as determined pursuant to Section 1.05(a) of this
Agreement, and (ii) the cost of all such External Funds, as determined pursuant
to Section 1.05(b) of this Agreement.
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(d) The interest rate applicable to Loans made by a Subsidiary to the
Utility Money Pool under Section 1.01 of this Agreement shall be the Average
Composite as determined pursuant to Section 1.05(a) of this Agreement.
Section 1.06 - Certain Costs.
The cost of compensating balances and fees paid to banks to maintain credit
lines and accounts by Parties lending External Funds to the Utility Money Pool
shall initially be paid by the Party maintaining such line. A portion of such
costs shall be retroactively allocated every month to the Subsidiaries borrowing
such External Funds through the Utility Money Pool in proportion to their
respective daily outstanding borrowings of such External Funds.
Section 1.07 - Repayment.
Each Subsidiary receiving a loan from the Utility Money Pool hereunder
shall repay the principal amount of such loan, together with all interest
accrued thereon, on demand and in any event within 365 days of the date on which
such loan was made. All loans made through the Utility Money Pool may be prepaid
by the borrower without premium or penalty.
Section 1.08 - Form of Loans to Subsidiaries.
Loans to the Subsidiaries from the Utility Money Pool shall be made as
open-account advances, pursuant to the terms of this agreement. A separate
promissory note will not be required for each individual transaction. Instead, a
promissory note evidencing the terms of the transactions shall be signed by the
Parties to the transaction. Any such note shall: (a) be dated as of the date of
the initial borrowing; (b) mature on demand or on a date agreed by the Parties
to the transaction, but in any event not later than one year after the date of
the applicable borrowing; and (c) be repayable in whole at any time or in part
from time to time, without premium or penalty.
ARTICLE II
OPERATION OF UTILITY MONEY POOL
Section 2.01 - Operation.
Operation of the Utility Money Pool, including record keeping and
coordination of loans, will be handled by KCS under the authority of the
appropriate officers of the Parties. KCS shall be responsible for the
determination of all applicable interest rates and charges to be applied to
advances outstanding at any time hereunder, shall maintain records of all
advances, interest charges and accruals and interest and principal payments for
purposes hereof, and shall prepare periodic reports thereof for the Parties. KCS
will administer the Utility Money Pool on an "at cost" basis. Separate records
shall be
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kept by KCS for the Utility Money Pool established by this Agreement and any
other money pool administered by KCS.
Section 2.02 - Investment of Surplus Funds in the Utility Money Pool.
Funds not required for the Utility Money Pool loans (with the exception of
funds required to satisfy the Utility Money Pool's liquidity requirements) will
ordinarily be invested in one or more short-term investments, including (i)
interest-bearing accounts with banks; (ii) obligations issued or guaranteed by
the U.S. government and/or its agencies and instrumentalities, including
obligations under repurchase agreements; (iii) obligations issued or guaranteed
by any state or political subdivision thereof, provided that such obligations
are rated not less than "A" by a nationally recognized rating agency; (iv)
commercial paper rated not less than "A-1" by S&P or "P-1" by Moody's, or their
equivalent by a nationally recognized rating agency; (v) money market funds;
(vi) bank certificates of deposit; (vii) Eurodollar funds; and (viii) such other
investments as are permitted by Section 9(c) of the Act and Rule 40 thereunder.
Section 2.03 - Allocation of Interest Income and Investment Earnings.
The interest income and other investment income earned by the Utility Money
Pool on loans and investment of surplus funds will be allocated among the
Parties in accordance with the proportion each Party's contribution of funds in
the Utility Money Pool bears to the total amount of funds in the Utility Money
Pool and the cost of any External Funds provided to the Utility Money Pool by
such Party. Interest and other investment earnings will be computed on a daily
basis and settled once per month.
Section 2.04 - Event of Default.
If any Subsidiary shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors, or any proceeding
shall be instituted by or against any Party seeking to adjudicate it bankrupt or
insolvent, then KCS, on behalf of the Utility Money Pool, may, by notice to the
Subsidiary, terminate the Utility Money Pool's commitment to the Subsidiary
and/or declare the principal amount then outstanding of, and the accrued
interest on, the loans and all other amounts payable to the Utility Money Pool
by the Subsidiary hereunder to be forthwith due and payable, whereupon such
amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by each Subsidiary.
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ARTICLE III
MISCELLANEOUS
Section 3.01 - Amendments.
This Agreement may be amended by the parties hereto at any time by
execution of an instrument in writing signed on behalf of each of the parties
hereto, subject to all applicable approvals by the SEC and any applicable state
utility regulatory commission.
Section 3.02 - Legal Responsibility.
Nothing herein contained shall render any Party liable for the obligations
of any other Party hereunder and the rights, obligations and liabilities of the
Parties are several in accordance with their respective obligations, and not
joint.
Section 3.03 - Rules for Implementation.
The Parties may develop a set of guidelines for implementing the provisions
of this Agreement, provided that the guidelines are consistent with all of the
provisions of this Agreement.
Section 3.04 - Governing Law.
This Agreement shall be governed by and construed in accordance with, the
laws of the State of New York.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officer of each Party hereto as of the date first above
written.
KeySpan Corporation
By:
-----------------------------------
Name:
Title:
KeySpan Corporate Service, LLC
By:
-----------------------------------
Name:
Title:
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The Brooklyn Union Gas Company d/b/a KeySpan Energy Delivery New York
By:
-----------------------------------
Name:
Title:
KeySpan Gas East Corporation d/b/a KeySpan Energy Delivery Long Island
By:
-----------------------------------
Name:
Title:
KeySpan Generation, LLC
By:
-----------------------------------
Name:
Title:
Boston Gas Company
By:
-----------------------------------
Name:
Title:
Essex Gas Company
By:
-----------------------------------
Name:
Title:
Colonial Gas Company
By:
-----------------------------------
Name:
Title:
EnergyNorth Natural Gas, Inc.
By:
-----------------------------------
Name:
Title:
Date:
-------------------, 2000
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